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Judge Becker’s Last Criminal Law Opinions -- An Appreciation

The Third Circuit Blog team invited attorney Peter Goldberger to submit a comment as "guest blogger," in remembrance of Senior Circuit Judge Edward R. Becker (1933-2006):

This Blog on May 4 covered the Court's April 24 decision in United States v Risha. (Risha discussed the problem of when Brady material in the custody of state authorities will nevertheless be deemed to be in the constructive possession of a federal prosecutor.) We had no way of knowing then that Risha would, it seems, be Judge Becker's last precedential opinion on a criminal law issue. The former Chief Judge, a towering giant among federal jurists, died of cancer on May 19. Only 73 years old, he had been a federal judge for over 35 years.

Judge Becker was no pushover for the defense position on appeal -- no judge is, after all. Yet the Honorable Edward R. Becker was the defense lawyer's dream judge. Why? Because he had an open mind, was both tremendously intelligent and enormously knowledgeable (the old term "learned" comes to mind), and -- most important of all -- because he tried in each case to do the right thing, keeping in mind at all times that each case affects real people, and that every person matters. (We can only say "it seems" that Risha will be his final precedential decision, because the Court has already issued two posthumous Becker opinions in civil cases, finalized before but not processed for publication until after his untimely death.) As a district judge from 1970 through 1981, Becker was a pioneering advocate for procedural due process at sentencing. He emphasized the importance both of fair hearings and of articulated reasons for the sentence imposed. Once the Sentencing Reform Act and Guidelines were adopted, he was a tireless exponent of applying evidentiary rules, a heightened burden of proof, meaningful application of the parsimony principle, and enforcement of the rule of lenity in interpretation of guidelines and statutes. Most important, he always emphasized the continuing role for district court discretion under the Guidelines. Other important decisions insisted on strict proof of membership, specific intent, and agreement before convicting a defendant of conspiracy. He also authored the decision which required a cautionary instruction on the unreliability of eyewitness identification.

Risha may have been Judge Becker's last for-publication criminal opinion, but even more fascinating is the May 5 non-precedential decision in United States v Morris. Morris may present us with the great jurist's last criminal law opinion. Emblematic of his work ethic and devotion to justice for the individual, Judge Becker took the time to complete a lengthy dissent, just two weeks before his death. In the dissent, he argued that the denial of suppression should be reversed in this case because police had not satisfied one of the requirements for an inventory search -- compliance with the department's written policy. The Becker dissent shows Judge Nygaard's majority opinion to be predicated on a misreading of the police department’s own policy. It also demolishes Judge Fisher's concurrence (arguing for a "good faith" exception to the Supreme Court's requirement that police comply with their own inventory rules), in a classicly Beckerish four-paragraph-long footnote.

The majority in Morris affirms in part on grounds (inevitable discovery and search-incident-to-arrest) that the government never raised in the district court, and on which the record was inadequate and the defense did not have the opportunity to cross-examine. On these points, Judge Becker’s dissent takes the position that there should be a remand to develop those points. At least arguably, however, that was wrong. The burden of an inadequate record should have fallen on the government, as appellee, when it sought to invoke alternate grounds of affirmance it had not raised below. Steagald v United States, 451 U.S. 204, 209 (1981). Absent extraordinary circumstances, the government is not entitled to the benefit of a remand to correct deficiencies in the record of a suppression hearing, where it was not unfairly deprived of the opportunity to make its case in the first instance. Giordenello v United States, 357 U.S. 480, 488 (1958).

As Judge Becker himself liked to say, quoting the Latin poet Horace, "Homer nods." In other words, even the greatest will make mistakes sometimes. This procedural error in the dissent, if it was error, was nevertheless characteristic of several of Judge Becker's best traits: it shows how the highest value, for him, was to "get it right," and not to hold the lawyers -- even the lawyers for the government-appellee -- too strictly to a raise-it-below-or-lose-it appellate mentality.

When Judge Becker presided at oral argument, the red light meant nothing. Argument continued until all questions had been explored thoroughly. It always seemed like he had all the time in the world to try and "get it right." Alas, he did not have as much time as we would have wanted him to have, for our own sakes -- many more years of dispensing justice with an even hand, a keen intellect, and a kind heart.

Peter Goldberger, a former Assistant Federal Public Defender, clerked for Judge Becker in 1975-1976. For the last 20 years, he has maintained a national federal criminal defense appellate practice, now located in Ardmore, PA.


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